What should you do if you lose an important decision or ruling in a lawsuit and a reporter calls with questions about the case?
First, don’t engage with the reporter until you know your next step and have contacted your communications/PR team. Even a polite call back to the reporter or a “refusal to comment” can send the wrong message in a resulting article.
Ideally, you would have a PR plan in place at the start of the trial, one that includes the key messages you want to convey externally, timelines, role assignments for communications, and potential statements that can be quickly updated and deployed across different outcomes. .
Or maybe you don’t have a plan. Or you do, but the specific outcome was not anticipated or taken into account in the plan.
Whatever the scenario, it is essential to weigh the current situation, including what led to the loss, whether it is a total loss or a partial loss, what your next steps might be and other important considerations , before going into the media.
Engaging your communications/PR team as early as possible can greatly support your media strategy, and by extension your litigation strategy for your client. It can also prevent or limit misrepresentation of the legal facts.
Whether it’s someone within your company or a team from an outside agency, or even a combination of the two, your PR support has likely faced similar situations in the past and can draw on that experience to help navigate an adverse outcome . They may also have relationships with inquiring reporters – especially if they provided PR support earlier in the process.
Then decide if you can gain anything by stepping up to the plate. If speaking off the record to a reporter doesn’t advance your next steps, consider not responding, or at most speaking off the record (more on that later).
If it would be helpful to provide a comment, determine if you have permission from your client to do so. You may have discussed this with the client earlier in the trial, but even if not, the ABA Model Rules of Professional Conduct provide some ethical guidance on the do’s and don’ts of dealing with the press during the trial (Rule 3.6: Trial publicity And Rule 1.4: Communication help provide some outlines on coordinating with the client and making public statements on legal proceedings).
Regardless of the model rules, it is always a good idea to ask a client for permission and work closely with him or her before speaking to the media. The client may have a PR team responsible for all media engagement, and you don’t want two lines of communication running to the same reporters. Co-counselors may also have their own PR people planning to respond, making coordination between all parties essential.
If it appears that you have been given the green light to speak to the media, determine who your spokesperson is, what they will say and how you will convey that message. Often the best response to a lawsuit loss is a written statement that highlights any favorable elements of an outcome, looks ahead to your next steps, and explains why your chances of winning there are high.
Each situation varies, but in any case, avoid the temptation to badmouth the other side, the judge and, if applicable, the jury. That may be easier said than done, especially when emotions run high and a reporter gives you the opportunity to share your thoughts. A reporter can even fish for a comment like this to add some color to a story.
But while such statements make it more interesting for readers, they come at the expense of your case strategy, your reputation and that of your client. You could also derail a potential settlement, or worse, lead to further litigation. It is best to stick to your key messages that are forward-looking and that advance your litigation strategy and protect your client.
In cases where you are unable to make an official appearance, but have permission to speak on background or off the record to a reporter covering the case, this can effectively highlight elements of the case that could be lost in sensational headlines. It also provides the opportunity to help a reporter understand the timeline and legal facts of the case – especially if it spans many years and jurisdictions/locations, involves parallel proceedings and side disputes, or even involves complex technical details.
Maybe the other side won on one claim, but you defeated several others that could have suffered much more damage. Or perhaps in other cases the winning claim is often rejected on appeal. Whatever the situation, it would be helpful to draw a reporter’s attention to these details of the outcome, referring back to the documents as much as possible. It can provide valuable context to a potential story and paint a different picture than the total victory the other side claims.
If a reporter doesn’t call you, but you or your team eventually discover unfavorable reporting on the case, you should similarly consider your next steps. Is it worth sending a statement or speaking off-the-record or background on the key elements of the case, or is it best left alone so as not to draw further attention to the outcome? Would involving the reporter or providing commentary have a positive or negative impact on the future case strategy? These are considerations you should discuss with your PR team and client.
As the case proceeds through further motions or appeals, consider promoting any resulting victories. There may be no point in commenting on a case in the moments after a defeat, but that could change if something is later overturned or overturned on appeal and turns into a victory.
No amount of publicity about a loss will be completely beneficial, and since most lawsuits are public, there isn’t much you can do to prevent the news from being published. But if you stay focused on your overall strategy and messaging, even in the face of setbacks, you can weather the media scrutiny and manage the resulting coverage.
Jean-Luc Renault is a vice president at global communications company INFINITE, based in Los Angeles. Yvonnie Phan is an Associate Vice President at the New York-based company.